Is the House abortion bill unconstitutional as Democrats claim?

“It is unconstitutional, and it is dangerous to the health and safety of American women.”

—Rep. Zoe Lofgren, D—Calif.

Summary

Unconstitutional? Unclear.

The Facts

The decision of House Republicans in June 2013 to pass a bill restricting abortion led to a common response from Democrats: The bill is unconstitutional.

The response from the Democrats’ chosen spokesperson in the House, Rep. Zoe Lofgren (D-Calif.), was typical:

This bill imposes a nationwide 20-week abortion ban. It is unconstitutional, and it is dangerous to the health and safety of American women.

The constitutionality of the bill hinges on two general concerns. First, the content of the bill. Second, the nature of the constitutional right to abortion as originally described in the Roe v. Wade decision and later elaborated in other federal court decisions.

H.R. 1797: Pain-Capable Unborn Child Protection Act

(2)(A) Except as provided in subparagraph (B), the abortion shall not be performed or attempted, if the probable post-fertilization age, as determined under paragraph (1), of the unborn child is 20 weeks or greater.

The bill includes exceptions for the health of the mother and for cases of rape. The health exception specifies life-threatening physical conditions while the rape exception requires that the rape is reported to law enforcement before the abortion procedure.

Constitutional protection of abortion

The Roe v. Wade abortion case permits legislative restrictions of abortion after fetal viability, the stage of development where a fetus can continue to develop and grow to maturity outside of the womb:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician. Pp. 163, 164.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Pp. 163, 164.

(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Pp. 163-164; 164-165.

Paragraph (c) allows that the State may restrict access to abortion, even to the point of banning it, after fetal viability. The Court established no hard date at which it counted a fetus as viable.

Medical science counted a fetus as viable at about 24 to 28 weeks during the 1970s, so the Supreme Court used that number to support its framework for legal abortion. Thanks to medical advancements, fetal viability has changed over time so that a fetus may survive outside the womb earlier than 24 weeks. However, barring a major medical breakthrough, limited fetal lung development will keep the potential for fetal viability at about 22 weeks.

Analyzing the Rhetoric

H.R. 1797 clearly does not follow the fetal viability standard that comes to us from Roe v. Wade. It would ban most abortions from 20 weeks of development onward regardless of viability. In that limited sense, the House bill is unconstitutional. Does that make the bill unconstitutional?

That issue isn’t so clear.

Some observers note that bills like H.R. 1797 appear to aim at prompting the Court to reconsider its viability standard in favor of the fetal pain standard. If the Court changes its standard then the bill may pass constitutional muster. The text of the Constitution no more speaks against the fetal pain standard than it speaks for the Roe Court’s fetal viability standard. And the Roe decision does not prevent the later existence of an alternative standard.

The Living Constitution v. Stare Decisis

The Constitution paints an extremely vague picture of the right to an abortion. The Roe decision, in fact, has historically drawn much criticism from liberals on the issue of its legal grounding.

The constitutionally vague nature of the right to abortion forces Democrats like Lofgren to plan a delicate rhetorical balancing act. Liberals tend to favor interpreting the Constitution as a “living” document, where its meaning is conditioned and modified by changing times. At the same time, decisions of the Supreme Court receive deference in later rulings, a principle known as stare decisis.

Do Court precedents also feel the effects of the flow of time? Unless Supreme Court rulings stand higher than the Constitution itself, decisions like Roe v. Wade appear vulnerable to reinterpretation according to changing times. And without dependable interpretive principles, who can say whether a law is unconstitutional without seeing into the minds of the justices?

Accordingly, there are two barriers to claiming H.R. 1797 is unconstitutional. Under the a constructionist or textual view, there’s nothing specific in the Constitution to offer guidance to tell us the law is unconstitutional. And the “living Constitution” view sets the stage for Court reversals over time, especially where we lack specific guidance in the language of the Constitution.

The fetal pain argument

Would the Supreme Court throw out the fetal viability argument and adopt something like a fetal pain standard? That’s another question with no clear answer. The Court could toss out the fetal viability framework without adopting a fetal pain standard. Or it could reaffirm the fetal viability framework.

Justices may well regard the fetal pain argument skeptically because the evidence supporting it remains controversial.

In short, it isn’t at all certain that the House bill is unconstitutional. Lofgren’s appearance of certitude comes across as an exaggeration meant to rally abortion rights supporters against the House bill.

Summary

“It is unconstitutional.”

Though true in the sense of sidestepping the Supreme Court’s precedent on viability standards, Rep. Lofgren’s claim projects a false sense of H.R. 1797’s challenge to existing abortion law. Fetal pain represents a plausible alternative standard unknown when the Court wrote the Roe v. Wade decision.

6 Comments

Bryan, This is the first time I checked out your site, and you are doing outstanding work here.

The one other argument I think the bill has in favor of constitutionality is the equal protection clause of the 14th Amendment. If the unborn child is recognized as a human person, then clearly that group of people are not being treated equally under the law. Not sure of federal law, but in many states murder of a pregnant woman is a double homicide. This is just because two people were killed. It would be unequal treatment under the law to only pursue justice for the older of the two persons.

This is actually, in my opinion, why Roe v. Wade itself is unconstitutional. Our original constitution, through an evil compromise made African slaves 3/5ths of a person and the evil right was granted to use and abuse them without any protection under the law.

An analogous situation exists for the unborn humans. They in effect are 0/5ths of a person. This came not from a compromise at the Constitutional Conference of 13 colonies, but from a 5-4 split on the Supreme Court. This group of humans has no protection under the laws of this country.

The three-fifths compromise is actually very defensible. It made slaves three-fifths of a person only with respect to apportionment, where the census helps determine how power is distributed in Congress. If a slave counted as a whole person for purposes of apportionment, then Southern states would have held increased power in the national government, and getting rid of slavery would have proved even more difficult than it was.

Slave states were all in favor of counting slaves for purposes of apportionment. It was those who opposed slavery who insisted on the compromise in order to weaken the political power of the slave states.

Bryan, I would agree defensible but not very defensible. ;). That would mean some very fwd thinking founders, which is very defensible, but it is still an end-justifies the means argument and think it is more than defensible to say the moral evil of treating slaves as property rather than persons is not defensible. God gave them inalienable rights that that compromise denied them, just as the Supreme Court decision that legalized abortion have done for unborn babies.

The framers didn’t have to be all that forward-thinking. Sentiment for ending slavery was strong in the North. The number of slaves held in the South was substantial. The framers were extremely interested in the way the people and the states exercised power at the level of the national government. The divide between the North and the South was obvious from the fact that we wouldn’t have a United States today because the Constitution would never have been ratified without the three-fifths compromise. And consider the position of the North. The South was insisting that slaves were property. And the South at the same time wanted slaves to count toward representation in Congress. The South could, in principle, engineer dominance of Congress by increasing its slave population.

The three-fifths compromise said nothing about the value of slaves except very narrowly in terms of apportioning representatives in Congress and taxes on the states. That’s it. Nothing more. If slaves were given their freedom then it made sense to apportion political power to them as citizens. But the bulk of them weren’t citizens. They were treated as property under the law except when the South wanted to protect its political power in Congress. Counting slaves as people for the purpose of maintaining the political power to keep them in slavery as non-persons was doing the slave no favors. It wasn’t at all about viewing slaves as in any way subhuman. Remember, it was slaveholders who primarily favored counting slaves fully toward apportionment.

Imagine that the state of New York captures four million invading Canadians around the time of the Census and puts them in a detainment camp. Should they be counted toward apportionment, giving New York greater power in the House of Representatives? If not, we have a suitable analogy finding that the captured Canadians are not people, at least for purposes of apportionment. Thanks for reading. I hope you’ll bookmark the site and return regularly.

You explained that very well. Thank you also for not pointing out the Roe v Wade was 7 to 2 rather than the 5 to 4 that I assumed it was. I still can’t believe that one. My history teachers, professors never explained the backstory this way . . . that is was actually the South that wanted them counted. The example is also very helpful.

I am subscribed to your site. I am very impressed with all your references at the end of each article.

I did have one question, that I would love if you could research. It is a repetitive claim by Planned Parenthood and by sites raising money to fund abortion or to help sell abortion to women to cite the following as fact. I am sure it must include women that have had more than one abortion without adjusting the certificate to not double count the woman, but I don’t have any way of validating that. Do you? Here is the stat:
“1 out of 3 women will have an abortion in her life time.”

Unlike your articles, I never find it cross-referenced to anything!

Bryan W. White(Post author)July 14, 2013 at 11:47 pm

I found Sarah Kliff’s explanation of the figure. It admits to the weakness you suspected and has other problems as well.